United States v. Leobardo Lara ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 23, 2012
Decided August 30, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 12-2065
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Western Division
v.
No. 12 CR 500019-1
LEOBARDO LARA,
Defendant-Appellant. Frederick J. Kapala,
Judge.
ORDER
This is Leobardo Lara’s second trip to the court of appeals in connection with criminal
charges that have been brought against him. The nature of the case has changed, however.
In the first round, Lara had been charged with possession of marijuana with intent to
distribute and with conspiracy to possess with intent to distribute, in violate of 21 U.S.C. §§
846 and 841(a)(1). Along with some co-defendants, he appealed from his conviction on
those charges and won a new trial. See United States v. Pillado, 656 F.3d 754 (7th Cir. 2011).
On remand, however, the government abandoned the drug charges and chose to proceed
with an information charging him with being an alien who is illegally in the United States
and possesses a firearm, in violation of 18 U.S.C. § 922(g)(5)(A). Upon his appearance
before the district court on March 19, 2012, Lara waived his right to an indictment by a
grand jury and entered a plea of guilty to the information. On April 19, 2012, he appeared
No. 12-2065 Page 2
for sentencing. The district court concluded that his offense level was a 15 and his criminal
history category was I; this yielded an advisory guideline range of 18 to 24 months. The
court imposed a sentence of 24 months, but it also deemed this sentence fully served,
because by that time Lara had been in custody for 31 months. The court fined Lara
$10,112.94, but it ruled that this fine had been satisfied by his earlier payment in connection
with the earlier conviction, and it concluded that the $100 assessment could also be applied
from the earlier case. Upon his release from custody, Lara was remanded to the custody of
the U.S. Marshal pending removal proceedings; his release also began his three-year period
of supervised release.
Lara has now appealed from his new conviction, but his appointed attorney has
concluded that the appeal is frivolous and seeks to withdraw, citing Anders v. California, 386
U.S. 738 (1967). Lara has not responded to our notice pursuant to Circuit Rule 51(b). Our
review is thus confined to the potential issues identified in counsel’s facially adequate brief.
See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Lara does not wish to challenge his guilty plea, and so counsel appropriately refrains
from addressing any issues connected with it. See United States v. Knox, 287 F.3d 667, 671-72
(7th Cir. 2002). Counsel has reviewed the district court’s application of the U.S. Sentencing
Guidelines in arriving at Lara’s advisory sentencing range, as well as the court’s
application of 18 U.S.C. § 3553(a), and he sees no possible arguments that might be
advanced on appeal. Before sentencing, Lara and the government anticipated both the
offense level of 15 and the criminal history category of I that the court computed.
Counsel notes that Lara was not assigned any criminal history points, and so it is
impossible to raise any issue about that aspect of his sentence. As for his offense level, the
court began with a base level of 14, pursuant to U.S.S.G. § 2K2.1(a)(6) (the guideline that
applies to prohibited persons, a term defined in cmt. app. n. 3 to include any person
described in § 922(g)). (We note that the court may have referred to § 2K2.1(a)(6)(B), which
in turn refers to § 922(d) offenses rather than § 922(g) offenses, but this error was harmless
because the same 14-level baseline applies to prohibited persons. See § 2K2.1(a)(6)(A).) The
base offense level was increased by four pursuant to U.S.S.G. § 2K2.1(b)(6)(B), because Lara
possessed the firearm in connection with another felony offense – that of possessing 883
kilograms of marijuana with intent to distribute. Although this had been the subject of
Lara’s first appeal, this time around he agreed to the four-level enhancement as part of his
negotiated plea agreement. His admission that a felony was being committed while he
possessed the gun (an admission he made both in the plea agreement and during his
colloquy with the court) forecloses him from raising any argument with respect to the four-
level adjustment in his offense level.
Finally, the district court’s decision to impose a sentence within the properly computed
No. 12-2065 Page 3
guideline range is entitled to an appellate presumption of reasonableness. See Rita v. United
States, 551 U.S. 338 (2007). Nothing in this record comes close to overcoming that
presumption.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.